RECEIVED 

U.S. DEPARTMENT OF TRANSPORTATION OCT 3 1 2016 

FEDERAL AVIATION ADMINISTRA TTON 

WASHINGTON,DC HEARING DOCKET 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, } 

} 

v. } 

} 

FISHER SCIENTIFIC COMPANY, LLC, } 

Respondent. } 

In the Matter of Fisher 

Scientific Company, LLC 

Docket No. FAA-2015-1321 

(Civil Penalty Action) 

Judge Rawald 

PETITION FOR LEAVE TO AMEND APPELLANT'S BRIEF 

TO REFERENCE AND INCLUDE TRANSCRIPT OF PRE-HEARING CONFERENCE 

The FAA decision-maker in the instant appeal ("the Administrator") cannot deny the requested 

relief without suborning unethical conduct by its own attorneys in the office of Southern 

Regional Counsel ("SRC" or "agency counsel") and encouraging that office's wholesale 

disregard of Rule 11 of the Federal Rules of Civil Procedure ("FRCP"). 

When the agency counsel of record, Michelle Harper, filed no response to an Order dated April 

6, 2016, the Administrative Law Judge ("ALJ'') assigned to hear this action threatened on May 

17, 2016, to dismiss the government's case.

1 Lacking any legitimate excuse for her failure to 

comply with the April 6 Order, agency counsel filed a purported response to the ALJ's May 17 

Show Cause Order that made the following factual allegations that are central to the instant 

appeal and to the government's Response thereto: (1) that "the undersigned [Mr. Ellis? Ms. 

Harper?] and Respondent's Counsel had a lengthy phone call discussing the issues in the case;" 

and (2) that the "parties had a thorough discussion of the underlying facts of the case .... "

2 Ms. 

Harper has never signed the purported response and could not ethically do so because those 

statements are patently false, as unquestionably demonstrated by the undersigned's telephone 

1 Appellant's Brief, Exh. 6. 

z Appellant's Brief, Exh. 7 'If 'If 2 & 4 (emphasis supplied). 
records 3 Those phone records leave no doubt that the supposedly "lengthy phone call" lasted a 

mere 20 minutes and that the entire "discussion of the underlying facts" lasted barely two 

minutes and amounted to nothing more than Ms. Harper brazenly laughing off the ALJ' s Order 

by admitting that she had not "looked at that file in years."4 

Perhaps with intent to cover up the falsehoods in the purported Response to Show Cause Order, 

and to avoid Ms. Harper or FAA facing potential discipline or sanctions under Rule 11, another 

lawyer who has never entered an appearance in this case, Mr. Ellis, wrote his own name in the 

signature block as "managing attorney for" Ms. Harper. While FAA may have delegated to Mr. 

Ellis authority to approve and sign civil penalty notices and other sorts of documents, no such 

delegation can relieve either Mr. Ellis or Ms. Harper from their ethical and procedural 

obligations to make specific certifications regarding the truth offactual contentions in the 

document that they are submitting to a judge in their names. Ru1e 11 provides, in pertinent part, 

the following: 

(a) "Every ... paper must be signed by at least one attorney of record in the attorney's name 

(b) By presenting ... a ... paper- whether by signing, filing, submitting or later advocating it 

- an attorney ... certifies to the best of the person's knowledge ... formed after an 

inquiry reasonable under the circumstances: ... (3) the factual contentions have 

evidentiary support .... " 

The "managing attorney" whose name appears on the purported Response could not have done 

the slightest due diligence regarding the truth or falsehood of the key assertions referenced above 

or other factual contentions in that submission. If writing his name on the document was 

intended to be a certification required by Rule 11, he is as guilty as Ms. Harper of violating 

FRCP 11(a) and other ethics requirements concerning candor before a tribunal. At a minimum, 

he has exposed himself and the FAA to sanctions for making these demonstrably false and 

unverified factual assertions, as provided in FRCP 11(b ). 

Neither Ms. Harper nor Mr. Ellis appeared when the ALJ convened a Pre-hearing Conference at 

10:00 a.m. on October 4, 2016. When the ALJ finally found an attorney in the office of the SRC, 

it turned out to be a surprised and unprepared Mr. Ellis. Even though he is the "managing 

attorney" in the office, he offered no explanation or excuse for Ms. Harper's failure to appear 

and disclaimed any knowledge of her whereabouts. The undersigned has no way to know why 

Ms. Harper went AWOL for a third time in these proceedings, but it shou1d not be too surprising 

that an attorney who name was attached to such blatant falsehoods, having escaped signing and 

certifying the submission, wou1d prefer not to be questioned by a judge about it, either. 

3 Appellant's Brief, Exh. 8, Attachment 1. 

• Appellant's Brief, Exh. 8 at 2-3. 

Respondent's Petition for 

Leave to Amend 

2 
She need not have worried so much about that prospect. The ALJ, too, appears determined to 

avoid testing the veracity and validity of the Response to the Show Cause Order. Respondent 

moved to strike it on September 23, 2016, and agency counsel were obligated under the FAA 

Rules of Practice file a reply by October 8. At the October 4 hearing, however, the ALJ ordered 

SRC not to reply. 5 He cited no authority for that Order and has no lawful authority to enter it6 

This is exactly the type of situation FAA had in mind when it created Rules 215 and 219, where 

an ALJ takes sideways action to prolong needless litigation. Under the express terms of Rule 

219, an appeal of right lies with or without predicate action by the ALJ, whenever there is a 

"failure of the ALJ to dismiss the proceedings." 

SRC's most recent counsel of record, Mr. Landers, compounded the cover-up of agency 

counsel's failure to respond to the Show Cause Order in two respects. The Complainant's Reply 

Brief relies heavily on averments about Mr. Ellis's earlier, third-hand, factual representations 

about a conversation in which neither Mr. Ellis nor Mr. Landers participated and the gist of 

which is disproven by the undersigned's telephone records 7 Like Mr. Ellis, Mr. Landers appears 

not to have done any of the due diligence required by FCRP Rule 11 before making crucial 

factual representations to the Administrator concerning events about which he had no first-hand 

knowledge. The Reply Brief also relies heavily on Mr. Landers' representations about what 

occurred during the October 4 Conference even though he did not participate in it, either.8 The 

minimum amount of "inquiry reasonable under the circumstances" required under FRCP 11 

would be to read the transcript of the conference. Mr. Landers apparently did not do even that 

much before he signed, filed and otherwise advocated the Reply Brief. This is a plain violation 

ofFRCP ll(b) and should be sanctioned by the AdministratorunderFRCP II( c). 

By contrast, the undersigned presented, to the best of his personal recollection, information about 

what was and was not presented and what was and was not decided during the October 4 

Conference. The undersigned believes the transcript will bear out key factual assertions in 

Appellant's Brief, which specifically noted that the transcript had not been provided before the 

filing deadline for the Brief. To make it possible for the Administrator to get a clearer grip on 

the facts of this five-and-a-half-year old, $5,000 civil penalty case, the undersigned offered in the 

Brief to correct and revise it to cite to specific pages after the transcript arrived9 

Accordingly, Appellant Fisher Scientific Company, LLC, petitions the Administrator for leave to 

file an Amended Brief to make appropriate page references and to include as Attachment 10 all 

s Conference Transcript at_. 

6 The limits of an AL)'s authority to disregard the FAA Rules of Practice are explained in the Brief, 

Exhibit3. 

' Complainant's Reply Brief at 2 ("the parties did in fact confer ... "). 

s /d. at 3 ("there is not an ALJ decision for the Decisionmaker to review") 

9 Brief in Support oflnterlocutory Appeal at 4, n.ll. 

Respondenfs Petition for 

Leave to Amend 

3 
or part of the October 4, 2016, Pre-hearing Conference transcript within ten days after actual 

receipt by the undersigned. 

Dated: October 28, 2016 

Respondent's Petition for 

Leave to Amend 

\._-'' 

Jerry, . Cox, Esq: 

2050 Jamieson Ave., Suite 1212 

Alexandria, VA 22314 

(email) j coxiW.p_gtoma.;_sJ.rat<')gy_associat!'_'L(;()_ffi 

(tel) 703-757-5866 

Counsel for Thermo Fisher Scientific, Inc., and 

Fisher Scientific Co , LLC 

4 
CERTIFICATE OF SERVICE 

On October 28, 2016, the undersigned sent by the indicated type(s) of service at least one copy 

of the foregoing Notice on each of the persons listed below. 

0 [One Copy by US. Certified Mail] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. (E11-3JO) 

Washington, DC 20590 

0 [Original +One Copy by Hand] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2W1000 

600 Independence Ave., S.W. 

Washington, DC 20591 

00 [One Copy by Air Courier] 

Ryan M. Landers, Esq. 

Enforcement Division 

Southern Team 

1701 Columbia Ave. 

College Park, GA 30337 

Respondent's Petition for 

Leave to Amend 

0 [One Copy by air courier] 

The Hon. Douglas M. Rawald 

Office of Hearings, M-20 

US. Department of Transportation 

1200 New Jersey Ave., S.E. (Ell-310) 

Washington, DC 20590 

00 [Original+ Four Copies by Air Courier] 

Federal Aviation Administration 

800 Independence Ave., S.W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000 

0 [One Copy by US. Mail] 

Andrea Michelle Harper, Esq. 

Senior Attorney 

Office of the Chief Counsel 

Enforcement Division, Southern Team 

US. Department of Transportation 

Federal Aviation Administration 

Southern Region 

P.O. Box 20636 

Atlanta;YA ~9\0 

/ \ \ ! 

c (MJ~) \,_ ,()X, 

Jerry W. Cox, Esq. 

5